Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-05-02
Continuing upon the same point, tn
opinion SAYS:

Does the law conflict with Subdivision 3 OF
Section %. Article ". of the Constitution? 1t is
of special laws. 1t certainly regulates the prac
tice of Courts of justice in the few cases named.
Ii prescribes an exact form of complaint differ
ing in every essential particular fir. IN that pre-
Scribed by the Code. 1t provides for an attach
ment with afidavits or bond. 1t provides for
the payment of counsel fees If the suit be settled
before Judgment. In case of Judgment it pro-
yideS that the judgment shall include counsel
fees in such sum a. the ourt may deem reason
able, meme of which things can be done under
the Code of Civil Procedure. The conclusion is
irresistible that the legislation in question is
constitutional and void
Judge Levy further holds that the law
for the collection of railroad taxes is in
conflict with Subdivision 10 of the same
section of the Constitution which prohibits
the passage OF special or local laws " for
the assessment or collection of taxes" On
this point he says:
So far as the assessment of railroad property is
concerned, by the State Board of Equalization,
as the Constitution itself makes different pro-
vision for the assessment of railroad property
operated i'll more than one county from that re-
quired for the assessment of all other property
in the State, and as The Political Code simply
follows the provisions of the Constitution, it is
plain that the assessments are not assailable
under the subdivisions above quoted But
while a separate assessment OF their property
is directed by the State instead of county
officers, and is therefore, not assailable
Is nothing in the Constitution to indicate
that the taxes were intended to be col
tected upon such roads operated in more than
one county III any manner different from the
collections of taxes upon other property. On
the contrary it is very apparent that it las the
intention OF the trainers of the Constitution that
all taxes levied thereon were 10 be collected in
the same manner and by the same officers as
other taxes.
The opinion goes on 10 state the particu-
lar matters in which the defendants claim
that the rules applying to the owners of
railroads operating in more than one
county as to the collection of State and
county taxes are specially onerous, uncon-
stitutional and void, which are as follows
First-The requirement to pay said State and
county taxes ut the State Capitol to the State
Treasurer upon the order of the Controller.
Second-1he commencement of suit to col
lect such taxes without offering the property at
first for sale rs in other cases.
Third-AIaking the defendant liable to pay
not only the ordinary costs of suit, but counsel
fees also.
Fourth-The issuing of an attachment and
attaching any and all property not exempt from
execution, and, in case of Judgment selling the
same instead of enforcing the lien against the
property itself
Fifth-In case of the sale of property under
execution limiting the time OF repayment to
six months, instead of twelve months when
SOLD by the Tax Collector.
hitu cti tiliS iutSltDH Judge Levy cues q
a number OF authorities. He says:
If this is special law. there is no doubt that
ii il unconstitutional and void. The Court is
not without authority upon this point. Ex parte
Westerfield, 50 Cal, $50, Involved the construc-
ton of an Act of the Legislature entitled, An
Act TO regulate and provide day of rest in GER
tain cases, approved April 10, 1880" The Act
provided that il should be unlawful for any
person engaged in the business of baking to en-
gage or permit others in his employ to engage
in TIE labor of baking. for the purpose of sale
between the hours of o'clock P. N. on Satur-
day and o'clock p. N. on Sunday, etc The
petitioner violated this Law, was arrested there
Tor, whereupon writ of habeas corpus was
sued out and the same was heard by tire Su-
Treme Court in bank. Mr.. Justice Myrick, in
delivering the opinion said This is special
legislation. certain class is selected. Now
if there be authority to restrain labor on some
one day, ii must be, if at all, under general
law restraining labor on that day"
Justice Mckinstry. in concurring, said: " But
admi ting the cOnstitutionaiity of general laws
prohibiting all labor upon sunday. or upon any
other day. think the Act of April Is, 1850 is Il
special law within the meaning OF those terms
as employed in Section p. Article ". of the
present Constitution. 3 3 To say that
every law is general within the meaning of the
Constitution, which bears equally upon all to
whom it Is applicable is 10 say that there can be
no special laws"
Upon principal and authority, the conclusion
is irresistible that Sections 1863 and 800 of the
Political Code as amended in 1885, are in direcs
conflict with section p, Article ". of the Con
stitutiou. and are therefore void.
II is also claimed that the legislation in ques
ton is il direct confirmation Of SECTION J. Ar
ticle NIL, OF the Constitution, which reads as
follows: " Corporations may be formed under
general laws. but shall NOT be created under spe-
cial Act. All laws now in force in this State
concerning corporations, and all laws that NAV
be hereafter passed pursuant to this section
may be altered from time to time or repealed"
The Odd Constitution (sec1on 81, Article " }
had the following Corporations may be
I'm. hall NOT .o
created by special Act except for municipal
purposes. Ali general laws and special Acts
passed pursuant TO this section may be altered
from time 10 time or repealed -
1t viii be observed that SO far as private cor
porations concerned. the provisions of the
two Constitutions aIe the same, though clothed
in different angIage 1t has been Claimed by
some thst this reservation of power TO alter
amend or repeal conferred ample authority
upon the Legislature TO adopt the system for the
collection OF Ia Xes from railroad com Ia las nn,v
under discussion. This reservation ef power
may be SO welded as.to completely change all
corporation Laws or strike them from the statute
books by an absolute repeal of al laws bearing
upon that susgect, and therefore prohibit the
formation of such corporation but in altering
or amending sl.eh laws. il cannot free some of a
class and burden the others All must be
treated alike in this respect, or the law becomes
special and not general. and infringes upon the
Constitution.
This question has been carefully consi6 cred
and determined ia the great case of The CITY
and County of san Frapeisco vs. The Spring
Valley Water Works reported in 4sth cal ssrs
Mr.. Justice Crockett. WbQ delivered The opinion
of The Court, in speaking OF corporations SliS .
They csn only be formed iinder general laws
and can exercise no powers except such as are
derived from general laws. The gen
eral laws under which they are formed and
such Others as shall afteEwarti he enacted must
alone define their rights and powers. ON this
theory. all private corporations formed for SINH
lar purposes, will stand upon the same footing
enjoy the same rights and be sp 1T to the same
burdens, which cannot ie increased or df-
minished, except 10y general laws applicable
to ALL
Justice MeS.instry, in coneulTiag opinion.
said The Legislature could neither confer a
benefit nor iIsapSe penalty Ga the Spring Val
ley Water Worss not conferred on all water
companies by she general Law. To confer a
special benefit O. impose a special Obligation
woyld be equally destructive of the un;tori ity
which il is the oh;ses o, Section 81 Of Article "
of tbs CONSTITUENCIES secure"
The same learned Justice, on page 532, SAYS:
The rights and duties OF all corporations
formed nnder the gepe-al law providing for she
incorpos alton of water sompsEles are Fixed and
determined by its terms and can only be MOS
flied or changed by amendment nj the general
law And every such amendment must be ap-
pltcable TO AL corporations created under the
general law
Ia the case G. the Spring Valley Water Com
pany VS.. BryaS3t (52d Cal. 49, the Supreme
Court held that certain Acts of 9he Legislature,
SO far IS they atteR,pted to provide mode of
fixing the rates to bS charged by companies fur
nishing water to tbs Inhabitants OF Gan Fran
cisco, differing from tnet provided for establish
ing the rates to be allowed to other cc1r panies
formed under the general laws. are uEcoaSitu-
.ionai and void
The same determiaaii n was laid down in tbs
case of the Waterloo Turnpike Road Company
rs. ]. II Cole t5ist Cal, 3sl.l
In the case OF the Omnibus Railroad Company